December 8, 2011

New ABA mega-study calls for moratorium on executions in Kentucky

As detailed in this local article, which is headlined "Lawyers: Kentucky should suspend executions until flaws fixed," the ABA has released another massive study of a state's death penalty system and — surprise, surprise — it does not like what it sees. Here are the basics:

There are serious flaws in Kentucky's administration of the death penalty, increasing the chance an innocent person could be executed, an American Bar Association team said in a study released Wednesday. The team recommended halting executions in the state until lawmakers and others correct problems cited in the study.

Those problems include a lack of protections against executing seriously mentally ill people; high case loads and low pay for public defenders who represent people accused of capital crimes; no rule to preserve evidence for as long as someone is in prison, meaning they might miss a chance for DNA tests that could exonerate them; and confusion among jurors about their role in deciding whether to recommend a death sentence.

The study found that of the 78 people sentenced to death in Kentucky since 1976, 52 later had that initial sentence overturned because of errors at the trial. "The underlying concern is that an innocent person not be put to death," said William T. Robinson III, a Northern Kentucky lawyer who is president of the ABA. "When a person's life is at stake, the guarantees of fairness and due process are absolutely paramount."

A poll commissioned by the ABA found that 62 percent of Kentuckians support a temporary halt to executions, the study team announced during a Frankfort news conference. Support for the moratorium topped 50 percent in every demographic group, including men, women, Democrats, Republicans and urban and rural residents, according to the poll of 405 likely voters contacted between Nov. 30 and Dec. 4.

It would be up to Gov. Steve Beshear to declare a moratorium on death sentences, said Linda Ewald, a University of Louisville law professor who co-chaired the study team. Beshear issued a statement saying his office will carefully review the 400-plus page report.... There are 33 men and one woman under a death sentence in Kentucky.

As with the death penalty itself, there were mixed reactions and strong feelings about the study. Public defenders and the Kentucky Association of Criminal Defense Lawyers backed the call for a death-penalty moratorium and for changes in the state's administration of the ultimate penalty....

However, Attorney General Jack Conway said in a statement that he disagreed that the state's legal system is broken. Conway said prosecutors carefully consider which people they'll seek a death sentence for. He said trial judges make sure defendants' rights are protected, juries take their job seriously, and appeals courts look over the cases carefully for errors. "I am reviewing it carefully," he said of the report, "but I do not at first glance believe its analysis warrants a suspension of the death penalty."...

John Minton, chief justice of the Kentucky Supreme Court, which automatically reviews death sentences, attended the news conference and said he and the other justices will review the study to see if there are changes the court system might need to make.

But Minton said the percentage of death sentences overturned shows appellate courts are doing thorough reviews. "My interpretation of that statistic is that, at least at the appellate level, it demonstrates that the system is working," Minton said....

The study in Kentucky came as part of a larger project to assess the death penalty in a number of states. Kentucky was the ninth completed.

The full ABA study of Kentucky's capital system is available at this link. I have commented before concerning the ABA assessment reports in other states that I fear these mega-documents, though containing lots of useful information about a state's experiences with the death penalty, have not been developed or presented in ways that could have maximum practical impact. In particular, the failure of these ABA reports to assess the concrete financial expenses involved in the administration of capital punishment means that these documents cannot provide a tangible accounting of the direct fiscal costs of a broken death penalty system.

Comments

The whole thing is silly. At the end of the day, a system which gives murderers the ability to complain about death sentences (as opposed, of course, to innocence) is already skewed enough towards criminals. It's long past time to set dates in Kentucky for some of these vicious killers.

Posted by: federalist | Dec 8, 2011 10:07:14 AM

People like federalist will always find ways to accept the cost, however high and however devastating to other budgetary and social needs. It is the role of the ABA to analyze and assess the process .... which they have done with a vigor and depth unequaled by others. And it is the process which has to go .... because of its deficiencies and because it no longer represents a code of recognizable decency and morality in the 21t Century. I fail to understand the logic of a professor of sentencing law who so elevates Cost as a significant factor over those other factors, exorbitantly and extravagantly a waste as it is.

"Kentucky should suspend executions until flaws fixed."
What executions? The state has only carried out two involuntary ones during all these years. They have not had any since Baze was handed down over 3 1/2 years ago. Judge Shepherd blocked an execution in September of last year and still has not ruled.

Posted by: DaveP | Dec 8, 2011 3:37:53 PM

I'd be more impressed if the title read, "New ABA mega-study calls for moratorium on murders in Kentucky."

Posted by: TarlsQtr | Dec 8, 2011 4:05:24 PM

Quiz time:

1. How many defense lawyers are there in the ABA? How many prosecutors?

Right! Defense lawyers have prosecutors outnumbered.

2. Is the majority or the minority more likely to prevail?

Right again!

3. So why doesn't the ABA call for outright abolition?

Because (1) it can read pubic sentiment quite well and (2) it knows a "moratorium" with no set ending date is the same thing as abolition, but at half the PR price.

Just because the ABA relentlessly takes the criminals' side doesn't mean its members are fools. It means they know there is still money to be made and clients to be satisfied.

It also means that this "study" is going to get ignored, since all the above is not real hard to figure out.

Posted by: Bill Otis | Dec 8, 2011 4:50:05 PM

did someone read the ABA report?
and did someone read the 8 reports ABA made before?

Even fewer people read ABA reports than read law review articles. They're not really written to be read, because everyone knows from the getgo what they're going to say given their authorship. The ABA has long supported a moratorium, because that is what its killers-are-victims majority wants. It was inconceivable from the day this committee was named that it would reach any conclusion other than the one it did.

What's going on isn't open-mindedness. It's an attempt to feign open-mindedness, and not much of an attempt.

Posted by: Bill Otis | Dec 9, 2011 7:12:59 AM

claudio - some hope. Bill isn't interested in facts that reveal shocking deficiencies of process, nor recommendations for improvement, and certainly not a conclusion that suggests the process is irredeemably broken. If the report was a foregone conclusion it is because we all know that these deficiences exist ..... and the consequences for, what was it ..... 60% of those cases where there was a sentence of death failed the post-trial tests of accuracy or fairness. And that is the tip of the iceberg. Those same failings exist right down the chain of the criminal justice system. Scary but true.

Revealingly, you do not dispute a single word I said, and indeed all but admit my conclusion that the result of the "study" was preordained.

The reason for this is that, as you know but won't say explicitly, it's beyond absurd to think that an organization with the ABA's makeup would ever have something positive to say about the death penalty. To think that it would is as crazy as thinking that you would ever have something positive to say about the United States.

Posted by: Bill Otis | Dec 9, 2011 9:29:15 AM

Bill - revealingly, you do not dispute any of the findings of poor practice, resulting inefficiency in the use of resources, nor the shocking implications for the lives of those falsely accused (and their relatives)or over-sentenced. Your comments about the ABA are an insult to a significant section of the legal profession, yes, many who defend those accused under the justice system against stacked odds and resources as managed by an under-regulated prosecutorial system. The ABA report is about the facts of the system. It is politicians (some) and career prosecutors (some) who have most to gain from defending the death penalty .... but they do so without recognition of the devasting human costs, or concern at the appalling means that leads to so much injustice. And what they gain has nothing to do with achieving justice. An ABA membership of over 400,000 deserves a little more respect.

If you knew anything about the United States (other than "knowing" that it stinks), you might know that the then-Chief Justice of the Supreme Court resigned from the ABA 1n 1992 to protest its political slant. So did 2000 other lawyers. I am more than happy to share their company rather than yours.

"Bill - revealingly, you do not dispute any of the findings [of the study]..."

I don't know why you'd find that revealing, since I already told you I haven't read the "study" and am not going to. In so doing, I'll wager you a hefty amount that I'll be among the huge majority of this site's commenters. I've already heard a zillion reguritations of various forms of "Amerika Stinks" -- not a few of them from you -- and I don't need to read another.

"The ABA report is about the facts of the system."

It PURPORTS to be about facts, I'll assume that arguendo. But what it's actually about is the long pre-existing sentiment among its authors that the downtrodden Timmy McVeigh's of the world are the victims of, as you say, "inefficiency in the use of resources, [and] the shocking implications for the lives of those falsely accused (and their relatives)or over-sentenced."

Let me ask you straight-up: Out of hundreds of thousands of people who have been sentenced for serious crimes in this country, can you name even a paltry dozen you think were UNDER sentenced? Or is it always, always, the same with you?

And let me ask this too: Do you think criminals are primarily responsible for their own behavior, or do you think society is primarily responsible?

Posted by: Bill Otis | Dec 9, 2011 11:05:05 AM

Peter,

Thanks for the article; however, my query is not how great the expense to execute someone—$10 mil in the case of Basciano!—but why the great cost?

According to an Administrative judge and DP opponent whom I know, a significant amount is due to appeals by those of her ilk who resist its implementation.
If true, then for those who create the great cost to decry its expense is unadulterated hypocrisy.
If true, then for opponents to employ it as a basis for abolition is crass disingenuousness.

Is it not?

Posted by: Adamakis | Dec 9, 2011 12:04:42 PM

Adamakis - if you were one of the 60% wrongly sentenced, I think you would consider every appeal worthwhile. The starting point of the expense, its cause, is the totally unreliable and ineffectual procedure that makes such a high error rate possible. There is no contradiction in "creating the great cost" in defense of men and women who have not deserved the death penalty, and the criticism that without the death penalty that cost would be susbstantially less.

Bill - the fact that 0.5% followed Rehnquist?, a known right-wing conservative and Republican, who served as legal advisor to Barry Goldwater was, I'm sure, no great loss to the ABA.
Under-sentenced - I can think of a few certainly, amongst the ranks of corporate and political figures who could take advantage of huge resources to avoid what many would regard as their just deserts.
Are criminals primarily responsible for their own actions? .... of course. But that is not what we are discussing. The existing legal framework fails to protect the innocent, and vastly over penalizes the guilty. In the wider picture, the law has extended into people's ordinary lives to criminalize the young and other identifiable groups in ways well beyond what is the practice in most other nations, and well beyond what was accepted in the US in the recent past. People like you have driven this trend, and seek to justify it by demonizing just about anything that does not equate to the partisan doctrines of the right-wing conservative Republican movement. No, you would not fit comfortably amongst the ranks of the ABA.

1. When the Chief Justice of the United States resigns from the ABA because of its excessive entanglement in politics, that is an embarrassment of the first order. Deny it all you care to.

2. "Under-sentenced - I can think of a few certainly, amongst the ranks of corporate and political figures who could take advantage of huge resources to avoid what many would regard as their just deserts."

But you still couldn't NAME even a dozen of the hundreds of thousands who have been sentenced in this country who you think were let off too lightly. In addition, so far as your words reveal, you think every violent criminal -- every killer, every rapist, every mugger, thief, and hoodlum; and every dealer in meth, LSD, Ecstasy, and heroin -- every one of those was oversentenced.

Yikes.

3. "Are criminals primarily responsible for their own actions? .... of course."

Glad to hear you say it, albeit that it's inconsistent with virtually everything else you have written, as you go on to demonstrate by saying....

"But that is not what we are discussing."

Sure it is, and the reason we're discussing it is that it's impossible intelligently to analyse sentencing law and policy WITHOUT discussing it.

"The existing legal framework fails to protect the innocent, and vastly over penalizes the guilty."

The existing framework fails UNIFORMLY to protect the innocent, as does every system that has existed or could exist, except in a society that has no criminal law at all. But it protects the innocent to a degree unknown throughout most of the history of the world.

The problem you always ignore is the problem of trade-offs. If you make convictions extremely hard to obtain (for example, by requiring the unanimous agreement of 100 jurors rather than 12), fewer innocent people will be convicted. At the same time, massively more thoroughly guilty people will get off. When that happens, the crime rate will go right back up, and thousands more unsuspecting people will have the misery of crime visited upon them.

In the world of trade-offs -- which is the only world out there -- the USA has balanced things in a way that has seen the crime rate drop by HALF over the last 20 years. The cumulative amount of suffering that has been averted thereby is staggering.

You would throw it away. I wouldn't, and the majority in this country is with me.

"In the wider picture, the law has extended into people's ordinary lives to criminalize the young and other identifiable groups in ways well beyond what is the practice in most other nations, and well beyond what was accepted in the US in the recent past."

And in the nations of Europe (which is what you're talking about), the crime rate has been rising while ours has been falling. See the work of James Q. Wilson of UCLA.

As to what was accepted in the US in the recent past:
Twenty years ago, we had FOUR AND A-HALF MILLION MORE SERIOUS CRIMES than we had last year. You are quite right that we rejected the ways of the "recent past," because those ways were getting our citizens killed, raped, robbed, burglarized and swindled at a record rate.

We aimed to do something about it and we did, both Republicans and Democrats.

"People like you have driven this trend..."

Thank you.

"...and seek to justify it by demonizing just about anything that does not equate to the partisan doctrines of the right-wing conservative Republican movement."

Actually I seek to justify it by doing debates at law schools across the country (sponsored by the Federalist Society, the Constitution Project, Amnesty International, CATO, and this and that); by testifying before Congress; by writing op-eds; by blogging on Crime and Consequences; by contributing to candidates; and one thing or another.

Peter,
I hope we can agree that our states and our union will save a great deal of $ & time if/when we disallow non-probative appeals.

[1]Reginald Brooks par example (in 1982 shot his 11-, 15- and 17-year-old sons in the head as they slept):
"[Prosecutors] say he planned merciless killings, bought a revolver two weeks in advance, confirmed he'd be home alone with the boys, and targeted them when they wouldn't resist. He also fled on a bus with a suitcase containing a birth certificate and personal items that could help him start a new life."

"State and federal courts have rejected attorneys' arguments that Brooks, of East Cleveland, is not mentally competent and that the government withheld relevant evidence that could have affected Brooks' case."
Reginald Brooks was clothed and fed besides the aforementioned appeals all the way until 2011!

[2] How about double-murderer Carey Dean Moore (in 1979 committed "execution-style murders"): "The attorney...alleged Thursday that state officials were seeking to psychologically “torture” his client by pursuing a “sham” execution they could not carry out." No execution has happened yet in 2011.

[3] Or even Eddie Duval Powell, (in 1995 raped and murdered a 70-yr-old neighbor in a home invasion): "Powell took small change and jewelry from the home. He purchased wine with mostly nickels at a nearby gas station," & "claim[ed] that pentobarbital, might cause him pain and suffering."
E.D. Powell was also clothed and fed besides the aforementioned appeals all the way until 2011!

Posted by: Adamakis | Dec 9, 2011 3:30:05 PM

Adamakis --

Please. Don't you know it's not allowed to mention the specific facts of murder cases? Showing the coldness and sheer brutality of these characters might dampen the enthusiasm for letting them wriggle out of the sentences they did so much to earn.

What are you, some kind of bloodluster?

Posted by: Bill Otis | Dec 9, 2011 6:05:52 PM

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